Lasting Power of Attorney

A person can appoint one or more people to deal with their legal affairs by entering into a Lasting Power of Attorney (LPA).

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A person can appoint one or more people to deal with their legal affairs by entering into a Lasting Power of Attorney (LPA). The person appointing the attorney is called the 'donor'. There are 2 types, one dealing with health and welfare and the other dealing with financial matters. The latter enables the appointed attorney to deal with the donor's bank accounts, pay their bills, and, of course, deal with the sale of their home. The donor must have sufficient mental capacity at the time of making the LPA and it is necessary for a 'certificate provider' to countersign the document to confirm that the donor understands what they are doing and has not been pressured into entering into the document.

What many people do not realise, however, is that the LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. There is now a delay of around 20 weeks from receipt of the application to register the LPA before it is being processed. This includes a 4-week waiting period which is required by law. It is often the case that a donor makes an LPA at short notice when they realise that they are going to need help, but it could be up to 5 months after entering into the document that it is possible for the attorneys to rely on and use the document.

Since LPA's were introduced in 2007, the government has encouraged people to consider making it themselves, without taking legal advice and there is detailed guidance available. However, given the current delays with registration, it is important to ensure that errors are avoided because this will add to the time it takes for the attorneys to be able to help the donor.

It is important to satisfy requirements when making an LPA. Common mistakes to avoid are:

  • ensuring that it is correctly signed – the document must be printed out and signed by hand with a black pen; digital signatures can be used
  • everyone must sign the same, original document – it is not possible to send people photocopies or scans of the document to sign
  • ensure that the complete, original document is submitted for registration – signatories cannot send a scanned or photocopied page that they have signed.  The OPG cannot register an LPA which includes scanned or copied pages
  • the signatures of the donor and attorneys must be witnessed in person
  • the certificate provider must talk to the donor about the LPA
  • the LPA must be signed in the right order
  • a complete copy of all of the pages of the LPA must be sent for registration, even those which the donor has not needed to complete
  • the original document must be sent for registration – the OPG cannot accept scans or photocopies

Given the importance of getting it right first time and the delays with registration, a person wishing to enter into an LPA may consider that getting specialist advice is money well spent.

To discuss this or any other private client matter, contact us.

Members: Simon Shaw, Elizabeth Rimell and Janice Leyland.
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